CONFLICTING JUDGMENTS OF HIGH COURTS: THE PRINCIPLE OF LEGAL CERTAINTY AND THE ENDS OF JUSTICE
By
QAISAR ABBAS*
[It is] as well to create
good precedents as to follow them.
Francis Bacon
The judicial organ of the State is supposed to be a balancing, harmonising and unifying force. Any mistake, slackness or
omission on the part of the superior judiciary can lead to devastating
consequences. Therefore, anomalies and inconsistencies in the judicial system
at the top level (apart from organisational
structure, habitual defiance of the Constitution and scarcity of morality),
which are giving rise to a sense of uncertainty and unpredictability, can not
easily be overlooked, it must be resolved in time by nipping the evil in the
bud.
It is beyond any contention and controversy that it is the foremost
duty as well as prerogative of the Superior Courts to interpret the law in a
consistent and organised manner to avoid further
confusion.[1]
The conflicting judgments of High Court(s) in
The Supreme Court of Pakistan is the apex Court under the Constitution
of Pakistan, 1973 (Constitution) and its decisions are binding upon all the
Courts subordinate to it.[2]
Whereas, the High Court in each province is the highest Court in that province
and has original, appellate, revisional, supervisory
and extraordinary Constitutional jurisdiction and Its decisions are binding
upon subordinate courts.[3]
It is pertinent to mention here that unlike some other ‘federations’, there is
a uniform and homogeneous judicial system in Pakistan and the same sets of
courts administer both federal and provincial laws.
While, interpreting the law the Court has to observe many legal and
technical formalities for the smooth, transparent and consistent functioning of
the judicial system. The judge is supposed to keep balance between his
subjective sense of justice and objectivity of law and, his personal view
should not outwit the established norms of justice, in a given society. It has
been observed quite frequently that very little attempts have been made to
streamline the functioning of High Courts to avoid conflicts. Sometimes, one
federal law has been interpreted in different ways to the extent of
contradiction by the different Benches of the same High Court or by the
different High Courts. In the light of Article 4 and 25 of the Constitution,
every citizen is to be dealt in accordance with law and should receive equal
treatment of law, but in such circumstances the Constitution becomes nothing
more than a rolling stone. It becomes a revelation of personal sense of justice
and the written Constitutional safeguards stand compromised. Moreover, while
answering the same “question of law” (regardless, whether it is a federal or
provincial law) it seems quite habitual one that subjective
interpretation/understanding has often been preferred over harmonic or
consistent interpretation... virtually rendering law reports/precedents not
only incredible but also converting them
into a source of profound confusion. The same “question of law” should not have
different answers for any citizen; no matter who is interpreting it (i.e. which
High Court).
In this context, the application of
the doctrine of Stare Decisis/Rule of Precedent[4]
has been considered a useful tool of interpretation in Common Law jurisdictions
to achieve legal certainty, stability and predictability. According to Cardozo, “Stare decisis is at
least the everyday working rule of our law,”[5]
The doctrine is recognised by our Constitution
itself.[6]
It is also true that the rule of precedent, or stare decisis,
is a means and not an end.[7]
However, uncalculated innovations and deviations from the doctrine can breed a
sense of injustice and uncertainty. In the prevailing circumstances, in
achieving the ideals of justice, this paper may be a small contribution.
Identification of the Problem
The types and levels of conflicts
can be summarised as:
i.
Various interpretations of a federal law.[8]
ii.
Different interpretations of same ‘Question of Law’ by the
two SBs of the same High Court.[9]
iii.
Different interpretations of two or more High Courts on same
‘Question of Law’.[10]
(Benches of any strength)
iv.
Selective reliance upon the precedents/previous judgements
of the same or different High Courts.[11]
v.
Excessive number of judgments delivered per incuriam.[12]
Some instances of conflicts are
given herein below only to highlight the issue and they do not include a
wholesome survey of all the reported cases.
I.
Various
Interpretations of a Federal Statute
In this type of conflict, one
federal statute has been interpreted in different ways by different High
Courts. For example, various provisions of Juvenile Justice System Ordinance,
2000 have been interpreted in more than one way.[13]
In the same way, The West Pakistan Family Courts Act, 1964 has been construed
subjectively by the various judges sitting in the chambers.[14]
II.
Different
interpretations of same ‘Question of Law’ by the two Benches of the same High
Court
a.
In the second category, there are certain
types of decisions where one and the same question of law has been differently
construed by different Single Benches (SB) of the same High Court.[15]
b.
Or where SB of the same Court takes a
different view from the previous decision of a larger Bench (for multiple set
of reasons, to be discussed later)[16]
or difference among various larger Benches.[17]
III.
One High Court
differing from another High Court on same Question of Law
a.
In the third category, there falls such
decisions where an SB of one High Court has not approved the precedent set by
the Division Bench (DB) or by a Bench or greater strength of another High Court
on same ‘Question of Law’,[18] or;
b.
where SB of a High Court has taken
different view from the SB of another High Court on the same question of law.[19]
IV.
Judgments per Incuriam
‘Judgments per incuriam’ are the most
important but the least understood doctrine of common law, because in very rare
and exceptional circumstances the question is raised. Therefore it would not be
out of place to explain the concept which, otherwise with reference to the
scope of this paper is also relevant.
Halsbury's
Laws of England has commented on the ‘judgment per incuriam’[20]
as under:
A decision is
given per incuriam when the Court has acted in
ignorance of a previous decision of its
own or of a Court of coordinate
jurisdiction which covered the case before it, in which case it must decide
which case to follow; or when it has acted in ignorance of a House of Lords'
decision, in which case it must follow that decision; or when the decision is
given it, ignorance of the terms of a statute or rule having statutory force. A
decision should not be treated as given per incuriam,
however, simply because of a deficiency of parties, or because the Court had
not the benefit of the best argument arid, as a general rule, the only cases in
which decisions should be held to be given per incuriam
are those given in ignorance of some inconsistent statute or binding authority.
(emphasis added)
The application of the doctrine of stare decisis
to decisions of the Court of Appeal was the subject of close examination by
a Court of Appeal composed of six of its eight regular members in Young v. Bristol Aeroplane
Co. Ltd[21]
wherein it was held that the Court of Appeal was bound to follow its own
decisions and those of courts of coordinate jurisdiction, and the ‘full court’
was in the same position in this respect as a division of the Court consisting
of three members. The only exceptions to this rule were declared as follows:—
(1).
The Court [i.e. Court of Appeal] is
entitled and bound to decide which of two conflicting decisions of its own it
will follow;
(2)
The Court is bound to refuse to
follow a decision on its own which, though not expressly overruled, cannot, in
its opinion, stand with a decision of the House of Lords [i.e. in conflict with
the ruling of House of Lords/Supreme Court];
(3) The Court is not bound to follow a
decision of its own if it is satisfied that the decision was given per incuriam, e.g., where a statute or a rule having statutory
effect which would have affected the decision was not brought to the attention
of the earlier court.
Although, later on, Lord Denning on the pattern of House of Lords[22]
attempted to liberate the Court of Appeal from the clutches of the doctrine of Stare Decisis[23]
what in the words of Lord Diplock;
[…] may be described, I hope without offence, as a one-man crusade with
the object of freeing the Court of Appeal from the shackles which the doctrine
of stare decisis imposed upon its liberty of decision
by the application of the rule laid down in the Bristol Aeroplane
case to its own previous decisions; or, for that matter, by any decisions
of this House itself of which the Court of Appeal disapproved.[24]
The best reasons for retaining the doctrine intact were stated by Lord Scarman in Tiverton Estates Ltd. v. Wearwell Ltd.[25]
in the Court of Appeal are worthy to be reproduced;
The Court of
Appeal occupies a central, but, save for a few exceptions, an intermediate
position in our legal system. To a large extent, the consistency and certainty
of the law depend upon it. It sits always in divisions of three: more judges
can sit to hear a case, but their decision enjoys no greater authority than a
Court composed of three. If, therefore, throwing aside the restraints of Young
v. Bristol Aeroplane Co. Ltd., one
division of the Court should refuse to follow another because it believed the
other's decision to be wrong, there would be a risk of confusion and doubt
arising where there should be consistency and certainty. The appropriate forum
for the correction of the Court of Appeal's errors is the House of Lords, where
the decision will at least have the merit of being final and binding— subject
only to the House's power to review its own decisions. The House of Lords, as
the Court of last resort, needs this power of review: it does not follow that
an intermediate appellate Court needs it and, for the reasons I have given, I
believe the Court of Appeal is better without it, save in the exceptional
circumstances specified in Young v. Bristol Aeroplane
Co. Ltd.
The judgments labelled as per incuriam lose their binding authority as precedents.
However, it may be noted that the terms decision
of its own or of coordinate
jurisdictions[26]
fortify the impression that a Court is bound by its previous decisions and the
principle of Horizontal Stare Decisis equally applies to the Court of simultaneous
jurisdiction. It is also pertinent to note that a Single Bench cannot declare a
judgment per incuriam delivered by the Supreme Courts
or by the Benches of greater strength of the same Court[27]
and, a bench of greater strength needs not to declare a judgment per incuriam which is delivered by a bench of lesser strength.[28]
The concept of ‘judgments per incuriam’ in
Analysis
There are multiple reasons for this judicial uncertainty and only the
superior judiciary can not be held responsible for it.[32]
The foremost is the poorly drafted legislation that leads to a chaotic situation.
Asif Saeed Khosa J. while delivering the opinion of Full Bench in the
case Zahoor Ahmad and 5 Others v. The State and 3 Others[33]
observed quite ironically;
[T]he law may
sometimes be an ass but it cannot be so asinine as that. […“t]he law sometimes
is called an ass but the Judge should, as far as it is possible, try not to
become one". […”L]aw may be blind but the Judge is not"...
(References omitted)
Apart from this, there are various Special Laws besides containing Non obstante Clauses
also contain a Saving clause like in addition to and not in derogation with---which
if literally interpreted renders statute almost of no use for all practical
purposes.[34]
It has been frequently observed that a judgment rendered by a Single
Bench on the same point can be only persuasive and not authoritative for any
other Single Bench of the same High Court.[35]
This view seems to be misconceived and against the doctrine of legal certainty.[36] High Courts are not the final authority on a
question law, for the view expressed by them can either be affirmed or rejected
by the Supreme Court. Therefore, Lord Scarman’s
fears/reservations about Court of Appeal with reference to non application of
horizontal Stare Decisis
can literally be applied to the High Courts that there are around hundred
judges and if each judge interprets the law in his own way, then at least there
would be at least fifty opinions upon same question.[37]
Here it may be said that the absence of application of horizontal Stare Decisis leads to multifarious interpretations of Federal
Laws which is against the spirit of fundamental rights and the principles of
policy laid down in the Constitution. With reference to provincial laws, where
one and the same question of law receives divergent interpretations, creates legal
uncertainty, imparts inequality and opens doors for pick and choose.
The other important reason for
different opinions of various Benches of High Courts is that judges were not
properly assisted by the advocates representing the parties. The question of the greatest importance is,
whether an advocate should present the actual position of (case) law or he
should refer only to those precedents which are beneficial to the party
represented by him? It would be difficult to lay down any mathematical or
rule based modus operandi other than re-emphasising
the adherence to the principles of professional ethics and deference to the
social responsibilities in discharge of their duties.
Foregoing discussion gives us a scattered picture of
a judicial system where, practically little attempts have been made to align
and harmonise the mechanism of interpretation of law and, every judge feels
exceptionally free to observe that there is no horizontal Stare decisis among the judges of
coordinate jurisdiction and the previous decisions of the same courts have only
persuasive authority.
The doctrine of Stare Decisis serves the interest of justice by retaining
legal certainty.[38]
According to Lord Goldsmith, commitment to "rule of law" is the
heart of parliamentary democracy. The doctrine of legal certainty means that the person
affected by a provision of the law must be able to foresee the manner in which
it is to be applied, particularly where the law has financial consequences for
him, and he has a legitimate expectation that this principle is likely to be
observed.[39]
Therefore, wisdom and certainty demand that each Bench of High Court
should be bound by the decision of Court of coordinate jurisdiction and this
rule should be applied intra as well as inter High Courts without any
difference subject to the well conceived exceptions, summarised
by the Court of Appeal in Limb v. Union Jack Removals Limited[40] wherein Brooke LJ stated:
(1) Where
the Court has considered a statute or a rule having the force of a statute its
decision stands on the same footing as any other decision on a point of law.
(2)
A decision of a two-judge Court of
Appeal on a substantive appeal (as opposed to an application for leave) has the
same authority as a decision of a three-judge or a five-judge Court of Appeal.
(3) The doctrine of per incuriam
applies only where another division of the Court has reached a decision in
ignorance or forgetfulness of a decision binding upon it or of an inconsistent
statutory provision, and in either case it must be shown that if the Court had
had this material in mind it must have reached a contrary decision.
(4) The doctrine [of Stare Decisis] does not extend to a case
where, if different arguments had been placed before the Court or if different
material had been placed before it, it might have reached a different
conclusion.
(5) Any departure from a previous decision
of the Court is in principle undesirable and should only be considered if the
previous decision is manifestly wrong. Even then it will be necessary to take
account of whether the decision purports to be one of general application and
whether there is any other way of remedying the error, for example by
encouraging an appeal to the House of Lords.
Conclusion and Suggestions
The Courts in Pakistan have also been occasionally expressing their
views to adopt similar kind of principle that ordinarily judgment of a single
Judge must be taken as binding by a brother Judge sitting singly so as to avoid
conflict of opinion in the High Court and confusion in the subordinate Courts
whose duty is to follow what is said and observed by the High Court.[41]
With reference to binding authority of the ruling of Division Bench Supreme
Court observed as;
In such circumstances, legal position which emerges
is that the second Division Bench of the High Court should not have given finding contrary to the findings of the 1st
Division Bench of the same Court on the same point and should have adopted the correct method by making a request for
constitution of a larger Bench, if a contrary view had to be taken. [...] We,
therefore, hold that the earlier judgment of equal Bench in the High Court on
the same point is binding upon the second Bench and if a contrary view had to
be taken, then request for constitution of larger Bench should have been made.[42]
[emphasis added]
In more elaborated terms a Full Bench of Karachi High Court[43]
also observed that in order to maintain judicial propriety;
(i)
the decision of a
Division Bench on a question of law should be followed by the other Bench. If
they differ, the proper course to adopt would be to refer the question for the
decision of a Full Bench;
(ii)
the decision of one
Division Bench on a question of fact is not binding on the other Division
Bench;
(iii)
if the decision of one Division Bench has not come to the
notice of the other Bench and a different view is taken in the subsequent
Division Bench case and when such two conflicting decisions are placed before
the Bench, the proper procedure to follow in such a case would be, for the
Bench hearing the case, to refer the matter to a Full Bench in view of the
conflicting authorities without deciding the question itself.
It has been dejectedly observed that no progressive moves have been
made by the courts to stab down such anomalies and to interpret the law in
consistent jurisprudential sense and, contentment is expressed by mere
reproduction of facts and provisions of
law followed by there subjective opinions. Consequently, leaving a room for the
subordinate courts to pick and choose amongst the decisions of Superior Courts
and legitimising their corruption.
Following measures are suggested to overcome from this ambiguous
situation:-
1.
Law Commission of Pakistan should conduct a thorough
revision of existing legislation and should suggest amendments in the light of
the rulings of the Superior Courts to avoid conflicts and Confusion.
2.
A Single Bench of every High Court should be bound by the
decision of the same Court (i.e. any other Bench of the same HC) and also of
the Court of coordinate jurisdiction (i.e. SB of any other High Court subject
to the well defined exceptions). Division Benches should also apply the same
rule.
3.
Where a previous decision of the same Court seems to be
unreasonable to a bench of same strength, the matter should be referred to the
Bench of Larger strength to avoid conflicting judgments.
4.
Every High Court must be bound by the decision of a Full
Bench of any High Court—regardless the strength of the Bench.
5.
In Criminal cases, the change of (precedent) law posing
adverse effect on the case of accused amounts to retrospective application of
law. Therefore, any substantive change adversely affecting to the accused
should not be followed. Only those precedents should be applied which were in
the field on the date of commission of offence--- because it is not the law
which is in the statute book but what the Court says.[44]
In this regard, adherence to the ‘Doctrine of Prospective Overruling’ can be
beneficial.
6.
These suggestions can only be practicable after a
categorical pronouncement by the Supreme Court on this point. So far, Supreme
Court’s ‘should’[45]
did not meet any recognition by the High Courts, therefore there must be a ‘shall’ to make the things certainly
work.
Further, it would be in the interest of justice, certainty
and stability to induct a professionally organized research team for the
assistance of Honourable judges in the chamber.
* M.A.,
D.L.L., LL.M.(Pb)., Advocate High Court, Email:
adv_qais@hotmail.com
[1] S. Zafar Ahmad v. Abdul Khaliq,
P L D 1964 (W. P.)
[2] Constitution of
Any decision of the Supreme Court shall, to the extent that
it decides a question of law or is based upon or enunciates a principle of law,
be binding on all other courts in
[3]
Constitution of
Whereas Article 203 (ibid.) runs as; High Court to superintend Subordinate Courts. Each High Court shall
supervise and control all courts subordinate to it.
[4] Some
scholars draw a distinction between the ‘precedent’ and ‘stare decisis’: See, e.g., Frederick G. Kempin,
Jr. (1959). “Precedent and Stare Decisis: The
Critical Years, 1800 to
(2000) (explaining that stare decisis
is strict, formalistic; precedent is less so.) I shall treat them as synonyms,
unless noted. They are of the same ilk. Put ‘doctrine of’ in front of them and
they are indistinguishable in ordinary legal usage; though you can have ‘a
precedent’ you cannot have ‘a stare decisis;’ stare decisis is used only for the doctrine.
[5] Cardozo, Benjamin N. (1921), The Nature of the Judicial Process, Yale University Press, p.20.
[6] Op cit. nn. 2,3 supra.
[7] Radin, M. (1946). “The Trail of the Calf,” Cornell L. Q. Vol. 32, pp. 137, 159.
[8] Op cit.
nn.14-15 infra
[9]Op cit. nn. 16-18 infra
[10]Op cit. nn. 19-20 infra
[11] Op cit.
nn.14-18, 32-33infra
[12] Ibid.
[13] See, Azra Bibi v. State, 2004 PCr.LJ
1967 (DB); Muhammad Din v. Muhammad Jahangir, PLD 2004 Lahore 779; M. Alim Ashraf v. State, 2005 MLD 1028; Qamar Hussain Shah v. State, P L D 2006 Karachi 331(FB).
[14]For example,Ghulam Rasool v. Senior Civil Judge With The Powers Of Judge
Family Court, Faisalabad and 4 Others,2008 C L C
775; Noor Hussain v. Azizan Bibi and 2 others,
[15] Mst. Sajida Parveen V.The Additional District
Judge, Rawalpindi and 2 others,
[16] Op cit.
IV. judgments per incuriam.
[17] Aleem Ashraf v.
The State,
[18]Ardeshir Hormusji Dalal Zoharastrian and 4
Others v.The State and Another, P L D 2001 Karachi 437, disapproved Muhammad Shafi v. D.S.P. Malik Gul Nawaz, PLD 1992 Lahore
178 (FB) and approved State v. Ali Hussain and others, PLD 1974 Karachi
403 (SB).
[19] Mazhar Illahi v. State PLD 2008 Peshawar 162; Saleem Hussian v. State, PLJ 1996 Cr.C.(Lahore) 916; Mahboob Ali v. State and 3 others, PLD 1996 Lahore 454; Tariq Latif Butt and others v. State and 4 others, 1996 MLD 1874; Muhammad Sharif v. S.H.O., P.S. City Hafizabad,
PLD 1997 Lahore 692. Contrary View: Mukhtar Khan v. S.H.O., Police Station Waris Khan, 2005 YLR 1329; Muhammad Khalid v. The State, 2003 MLD 874; Zaheer Behzad v. The
State, 2003 YLR 1582; Zahid Mahmood Malik v. Director Anti-Corruption, Punjab, 2008
YLR 1066; Muhammad Yousuf
V. Director, Anti-Corruption Establishment Punjab, Lahore, PLD 2004 Lahore
284; Mukhtar Khan v. S.H.O. Police Station Waris Khan District Rawalpindi and another, 2004 PCRLJ
976. ... are just few examples.
[20] . Halsbury's Laws of England, Fourth Edition, Volume 26, paras. 577-578.
[21] [1944] K.B. 718. Since then this case has
been upheld and followed subject to addition of few more exceptions. See also,
[22] London
Street Tramways v.
Before judgments were given in the House of Lords on
Their Lordships regard the use of precedent as an
indispensable foundation upon which to decide what is the law and its
application to individual cases. It provides at least some degree of certainty
upon which individuals can rely in the conduct of their affairs, as well as a
basis for orderly development of legal rules.
Their Lordships nevertheless recognise
that too rigid adherence to precedent may lead to injustice in a particular
case and also unduly restrict the proper development of the law. They propose
therefore to modify their present practice and, while treating former decisions
of this House as normally binding, to depart from a previous decision when it
appears right to do so.
In this connection they will bear in mind the danger of
disturbing retrospectively the basis on which contracts, settlements of
property and fiscal arrangements have been entered into and also the especial
need for certainty as to the criminal law. This announcement is not intended to affect
the use of precedent elsewhere than in this House. Practice Statement
[1966] 3 All ER 77. (emphasis added)
[23]Broome v. Cassels & Co. Ltd., [1971] 2 Q.B.
354; Schorsch Meier G.m.b.H. v. Hennin,
[1975] Q.B. 416.
[24] Davis v. Johnson, [1978] UKHL 1; [1978] 2 WLR 553.
[25] . [1975]1
[26] See n. 21
supra
[27] Qadir Bakhsh v. The
Crown, P L D 1953 Lahore 588 (F.B),
[However, if the judgment of a Bench of greater strength is in conflict
with/ignorance of a Supreme Court’s decision then the later, i.e. of Supreme
Court will prevail].
[28] See nn. 20 and 27 supra
[29] Qadir Bakhsh v. The Crown, P L D 1953
[30] PLD 1997
SC 35
[31] PLD 1994
SC 539; see also P L D 2005 Supreme Court 270; Jamuna Rai and others v. Chandradip Rai (A I R 1961 Pat. 178 at page 184) "It
is well established, that if there are two conflicting decisions of Division
Benches of a High Court, the opinion expressed by the first Division Bench must
prevail; Sashi Bhusan Rai v. Bhuneshwar Rai A I R 1955 Pat. 124. I would, therefore, in the instant case follow the earlier
Bench decisions of this Court in 6 Pat. L T
451, 14 Pat. L T 702 and 16 Pat. L T
[32] Lord Scarman, “The courts are not to be blamed in a case such as
this. If there be blame, it rests elsewhere.” Farrell v. Alexander,
[1976] Q.B. 345.
[33] P L D 2007
[34] See n. 19
supra
[35]Abdul Majeed Mugheri v. The State
through Advocate General, Sindh, P L D 1996
[36] See n. 33
supra
[37] See n. 26
supra
[38] See Broome v. Cassell & Co, [1972] AC 1027 at 1054 “The needs of
litigants and their advisers to know where they stand is not served if a lower
Court is free to create a conflict of authority by declining to follow the
relevant decision of a higher court.”
[39] see
generally Gemeente Leusden
v Staatsecretis van Financien
C-487/01 and C07/02 [2005] ; Fleming (t/a
Bodycraft) v Revenue & Customs, [2006] EWCA Civ. 70 STC 508.
[40] [1998] 1
WLR 1354
[41] Mst. Sajida Parveen v. The
Additional District Judge, Rawalpindi and 2 others,
[42] Multiline Associates v. Ardeshir Cowasijee,
PLD 1995 SC 423.
[43] Murad Ali V. Collector of Central Excise and Land
Customs, P L D 1963 (W. P.)
[44] Chief
Justice John Marshall observed, “It is emphatically the province and duty of
the judicial department to say what the law is. Those who apply the rule to
particular cases, must of necessity expound and interpret that rule." Marbury v. Madison,
5
[45] Op
cit. n. 43 supra